Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Sunday, September 20, 2009

Class action copyright suit filed against Scribd; is filtering an act of infringement?

In what could be Viacom v. YouTube for print, a Houston financial writer has sued Scribd.com for copyright infringement, purporting to represent a class of authors who allege their works have been illegally copied, re-formatted, and displayed by the popular document-hosting service. As first reported by CNET's Greg Sandoval, the plaintiff, Elaine Scott, is represented by Kiwi Camara, famous in the copyright world for his defense of p2p infringer Jammie Thomas-Rasset.Scott v. Scribd ComplaintScott's complaint is in many ways similar to those filed by movie, TV, and music companies against user-generated content web video sites like YouTube and Veoh. But there's an interesting twist, involving Scribd's efforts to prevent copyright infringement. Scribd has implemented its own "Copyright Management System" similar to the Audible Magic filter employed by Veoh and other sites, and YouTube's own proprietary sytem. According to Scribd:

Every document uploaded to Scribd is compared to the CMS database. If someone tries to upload a document that our system identifies as one of the tens of thousands of works in our CMS database (with more added daily), that document is automatically removed from Scribd.

There are two ways the documents get into the CMS database. First,

Each time Scribd receives a DMCA-compliant takedown request from a copyright holder, we quickly remove the unauthorized document and add a unique reference file corresponding to that document to our copyright database, deleting previously-uploaded copies of the same work identified by the system.

Or copyright owners can pre-emptively give Scribd a copy of their works to add to the database:

Sounds pretty good, no? According to Scott's complaint, no! In fact, the complaint specifically cites the operation of the CMS as an act of infringement:

Without permission of the authors, Scribd maintains copies of author's [sic] works for use in a copyright protection system. Once a copyrighted work is uploaded to Scribd without the copyright holder's permission, the infringement is ongoing and permanent. Even if the work becomes unavailable for download by users, Scribd illegally copies the work into its copyright protection system, without permission or compensation to the author.

In other words, asserts the complaint, making and retaining copies of infringing works in order to remove them from the system, and prevent future uploads, is itself infringing. One question I have is whether what Scribd maintains in its database are actual "copies" of the infringing materials, or merely (as in the case of the audio and video ID systems I'm aware of) digital "fingerprints" of the materials. The distinction may sound technical, but it could determine whether Scribd's CMS is itself infringing.

The complaint colorfully attacks the "West coast technology industry" that has "produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to repond to such complaints," and heaps scorn on "previous cases decided in the Ninth Circuit" which "do[] not reflect Fifth Circuit law and good policy." It asserts claims for direct, contributory, and vicarious copyright infringement, and seeks a declaration (probably superfluous) that Scribd is not protected by the DMCA's safe-harbor provisions.

There is already one similar suit pending against Scribd (though not a class action), filed August 25 by a San Diego financial writer named Larry Williams. Williams has also sued the individuals who apparently uploaded his works, though he now knows them only by his Scribd user IDs. (Williams will likely be able to out them either through discovery in his case, or via subpoenas under 17 USC § 512(h).) Of course, even if the DMCA Section 512(c) safe harbor shields Scribd from infringement claims, it definitely does not protect individuals who upload material without the permission of the copyright owner.

4 comments:

Even if Scribd is not keeping a digital fingerprint, but an exact copy of the works in its database, they may have a good argument that the use of the copyrighted works is fair use. The analysis would seemingly be very similar to the Fourth Circuit's in the turnitin.com case. See A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) (holding that the retention and use of unpublished, copyrighted works to detect student plagiarism was fair use).

Seems to me that the Scribd approach is in line with the general US framework that copyright works should be registered or deposited somewhere in advance. I'm not a member of Scribd so can't see whether they require a fee to do so.. (like the Library of Congress does).

I guess this has some practical advantages in the case of Scribd (i.e. a match will prevent the publishing of protected works which presumably the author would want not to be published in that forum). Having said that I really don't like the principle of prior registration especially when it's de facto compulsory for recovery of enhanced damages (e.g. registration with Library of Congress for a fee).

At the risk of going off topic, I really why the US didn't just embrace the Berne Convention and do away with prior registration completely (and implement moral rights etc) rather than wait over a hundred years and then implement a half-hearted version.. although I suspect it's down to self interest :-)

This suit not only has no chance based on CCBill and the Veoh cases (different circuit or not), but hasn't Camara now just made enemies of both sides? I really wonder how one can build a law practice by vehemently going after big content owners (and insulting them at every turn) for no money in one case, and then going after tech companies (again, for free unless he wins) and the DMCA safe harbor on the other hand (seemingly using language that is not going to win him friends in tech circles or among judges). He better have an awfully good business plan behind all of this or Camars & Sibley is going to be in trouble pretty quick.

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

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About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

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